The Carlisle Mosquito Online

Friday, May 22, 2009

Housing Authority worries about 40B regulation rewrite

Possible weaknesses in the proposed new local 40B regulations dominated the discussion at the May 18 Housing Authority meeting. The group voted to draft letters to the Zoning Board of Appeals (ZBA) and Board of Selectmen sharing their concerns and suggesting the ZBA submit the regulations to the state for comments. According to Town Administrator Madonna McKenzie, Town Counsel initially reviewed an old document, but is now reviewing the latest draft.

Under the state’s Chapter 40B comprehensive permit statute, developers may bypass local zoning restrictions on housing density if a quarter of the housing created will be affordable for low-income households. The ZBA is responsible for granting comprehensive permits and is working with the Planning Board to develop improved regulations.

Last year the Planning Board hired consultant Jon Witten to help draft the new guidelines. Witten is an attorney who represented abutters when the ZBA considered the Coventry Woods 40B proposal two years ago. The Coventry Woods development was never built, but according to former Selectman Alan Carpenito, the 40B application cost the town roughly $200,000 for legal counsel and other consulting fees.

The Housing Authority was not closely involved in writing the documents. At their request, the ZBA delayed opening the public hearing on the guidelines until June 15, in order to give the Housing Authority time to review the draft.

ZBA plans to vote on June 15

ZBA Chair Ed Rolfe says, “I expect that by the end of this week, the final draft of the Rules and Regs will be in the hands of the individual ZBA members for their review and individual consideration. We are scheduled to meet at the continued public hearing on the adoption of these Rules and Regs on June 15, where I expect we will make a decision.”

Affect on Benfield?

It is unclear how the new regulations will affect Carlisle’s first municipal project to construct affordable housing on the Benfield Land. The Housing Authority is currently negotiating a development agreement with the non-profit Neighborhood for Affordable Housing (NOAH), to construct 26 units of senior rental housing. The Housing Authority is concerned with the timing of the new ZBA regulations, one worry being that changes in requirements may add costs and delays to the Benfield project.

Rolfe notes, “If the new Rules and Regulations are adopted, they will have no more impact on Benfield than they would any other comprehensive permit applicant.”

Legal protection questioned

Housing Authority members were also concerned that the new regulations may be too strict to hold up under legal challenge. Members Susan Stamps and Steve Perlman, both attorneys, compared the language of the draft with the state regulations for 40B projects, and noted that according to 760 CMR 56.07(2)(a)(4) the state might rule against a town if the local regulations for 40Bs are more stringent than those for standard subdivisions.

Housing Authority members cited the following examples from the draft:

• The Housing Authority thought the requirement to supply information about land within a 500-foot radius of the project was more stringent than requirements in the recently revised Board of Health (BOH) well regulations. In most cases the BOH regs require a description of land usage within 200 feet of a proposed well, but when proposed wells will serve three or more dwelling units, the BOH may monitor the affect on existing wells within a 500-foot radius.

• Developers will be required to submit a total of 47 printed copies of the application to facilitate distribution to other town boards and consultants. Housing Authority Chair Alan Lehotsky called the quantity “just crazy.”

• Section 4.03 of the draft says that applicants may be required to pay for stenographic services to cover meetings.

• The Housing Authority thought the proposed regulations were “excessive” for small projects. Lehotsky later said he agreed that, “there definitely have to be regulations,” but explained that he wants “a sense of proportionality, based on science.” In a March 31 letter to Doug Stevenson, Chair of the Selectmen, Lehotsky wrote, “My fear is that establishing an onerous set of requirements that may be waived, will discourage the small projects and non-profit developers we would prefer. I am less convinced that these draft requirements will be a deterrent to large, well-funded developments.”

Letters share Housing Authority concerns, request state review

The Housing Authority voted to send a letter to the ZBA, with copies to the Planning Board, Selectmen and Town Counsel, detailing their concerns. They also voted to send a letter to the Selectmen, asking to be briefed on Town Counsel’s thoughts on the draft.

In a third decision, the Housing Authority will request that the ZBA use an option offered by the Department of Housing and Community Development (DHCD), whereby they can ask for a non-binding review of the draft. The idea of asking DHCD for comments is mentioned in the state regulations, under 760 CMR 56.05(1).

Other viewpoints

Rolfe says, “I do believe that the proposed new regulations have a better chance of standing a challenge than our current, out-dated regulations. Our current regulations are not in compliance with the guildelines set forth under 760 CMR 56.

Rolfe explains, “The information being requested [from a comprehensive permit applicant] is to ensure that the other town boards, which the ZBA represents during the hearing process, have sufficient data and information up front to begin their own review of the application. Don’t forget, one of the further restrictions that DHCD placed on the local hearing process with their new regulations is that the hearing must be completed within 180 days, unless an extension is agreed to by the applicant.”

Former Planning Board chair Greg Peterson said that the new regulations include performance standards (Attachment A) that are a step toward encouraging more uniform requirements by all Carlisle’s land-use boards and commissions. He said, “Strong local regs are a good protection for the town.” He said that they help “educate the development community and HAC [state Housing Appeals Committee] and the courts that they are dealing with a town that is fundamentally different in one very special infrastructure respect than most other towns within Route 495 – namely that Carlisle residents depend on private wells and septic systems.”


The documents drafted by the Planning Board consultant also include new Local Initiative Program (LIP) regulations. LIP projects are carried out in cooperation with local municipalities and are one type of “friendly 40B.” The Selectmen provide initial review, but do not currently have a set of regulations covering LIP requests. McKenzie said the Selectmen have briefly discussed the set of new regulations, but have not yet had a full discussion of either the proposed LIP regulations or ZBA guidelines.

According to Carlisle’s Administrative Coordinator Elizabeth Barnett, the town heard in late March that the state DHCD will consider the Benfield project a “friendly 40B” though not a LIP project, since it did not involve usual LIP characteristics such as owner-occupied housing, non-standard funding or new zoning district overlays.

Village Court expansion feasibility report

In other business, Barnett announced that the Carlisle Elderly Housing Association has invited the Housing Authority and Housing Trust to a meeting on May 28 to hear a report by the engineering firm Stamsky and McNary investigating the feasibility of expanding the 18-unit elderly housing development on Church Street. Barnett said the meeting will begin at 6 p.m. in Town Hall and is open to the public. ∆

© 2009 The Carlisle Mosquito